*2 ASHLAND, Before RUSSELL and MOOREMAN, Bankruptcy Judges.
OPINION
ASHLAND, Bаnkruptcy Judge: appeals United grant States a summary judgment in favor of Robert and Mary (debtors) ordering Isom the removal prepetition tax liens. We reverse.
FACTS
The facts in case are undisрuted. this Debtors owed the years income through taxes for the they Chapter when a petition filed in March brought 1987. The debtors an adversary proceeding seeking a determina- obligations tiоn that the tax were dis- chargeable sought requiring an order (IRS) the Internal Service to re- prepetition lease its tax liens (1982 Supp. U.S.C. agreed The IRS that debtors’ liability for the taxes was 523(a)(1), 507(a)(7), undеr 11 U.S.C. §§ IRS, however, argues 727. The that petition discharged tax liens for tax liabili- ties are not be removed under 6325(a)(1). granted summary
The bankruptcy court judgment for the debtors. The court rea- obligations soned for that since the through subject were to dis- charge, obligations years the tax for those are unenforceable. court then securing obligations held that tax liens are must be unenforсeable removed 6325(a)(1). The court or- dered the release all liens IRS to filed or their debtors respect discharged to the tax obli- gations.
ISSUE Seattle, Anderson, Atty., Gene S. U.S. Whether tax liens for tax lia-
Wash., for appellant. re- bilities Leslie, quired Davis, Seattle, removed under 26 U.S.C. W. Jeff & Hatch Wash., 6325(a)(1). appellees. isfied or has become unenforceable OF REVIEW
STANDARD lapse of rеason of time. appellate court makes an inde An (1939). U.S.C. grant summary pendent review of Kincheloe, 783 F.2d judgment. Darring v. replaced by 3673 was 56(c). (9th Cir.1986); Fed.R.Civ.P. 6325(a), virtually which is identical *3 determine, viewing the evi This court must provision statute. The 1954 substi current light favorable to the dence in the most “legally for tuted unenforceable” “unen any there are non-moving party, whether by lapse of of time”. The forceable reason fact and wheth genuine issues of material clearly contemplated other meth new law applied correctly court by might er the which tax become ods liabilities lapse might law. Ashton v. of time the relevant substantive unenforceable. While 816, (9th Cir.1986). method, clearly one such there are other Cory, 780 F.2d 818 liability might le
methods that become .a gally Texas v. unenfоrceable. Trust Co. of DISCUSSION (S.D.Tex. States, F.Supp. 3 683 United 1986, Code of The Internal Revenue 1933)(Sale by trustee in second deed extin action, applicable to this states: which is liens); secondary guished tax see also Ku (a) Subject of to such Release lien.— (S.D. States, F.Supp. 281 252 rio v. United may pre- regulations Secretary the as Tex.1968). scribe, Secretary shall issue a certifi- the Furthermore, Congrеss in 1954 enacted any imposed lien with cate of release of provides: which 6322 § any internal revenue tax not respect to Period Lien. of days day the on later than 30 after specifically date is Unless another which— law, by imposed by fixed the lien Section (1) Liability satisfied or unenforceable. shall arise at the time the assess- 6321 liability Secretary —The finds that the ment is made and shall continue until the assessed, together with for the amount liability for the amount so assessed ... is thereof, respect in has been all interest legally satisfied or becomes unenforcea- legally fully or has become un- satisfied lapse of of time. ble reason enforceable ... (1954). 26 6322 U.S.C. § (1982 Supp. 6325 U.S.C. § 6325(a)(1) completely would be Section 6325(a)(1) argues that under The IRS § legally read with 6322 if redundant when § unenforceable legally unenforceable means giv- unenforceable in the former section is Secondly, the lapse due of time. IRS to meaning suggested by the en the narrow apрly, if 6325 does contends that even § Congress specifically provided IRS. Since the liens not unenforceable be- the for the release of tax liens when tax bankruptcy, and are cause the liens survive liability due to has become unenforceable Conversely, therefore enforceable in rem. 6322, Congress lapse of time in could not § liability that the word the debtors contеnd in have intended unenforceable 6325(a)(1) used in means lia- as § solely to cases 6325 to be limited where § Thus, liability is bility. if the due liability the has become unenforceable “liability” bankruptcy, in the lapse time. and the Secre- has become unenforceable parties agree absent The tary is to release liens. in tax liens would remain 6325(a) predecessor The was § discharge bankruptcy. force after the 1939, Code of of the Internal Revenue 522(c) fact, history of legislative In must be re- provided which that tax liens expressly point: this addresses leased if: discharge not dоes ...
(a) Liability prevent or unenforceable. enforcement of valid liens. satisfied Bullard, liability Long v. 117 U.S. —The finds that rule collector 917, 1004], (1886) L.Ed. assessed, together all with S.Ct. amount [6 thereof, respect tо the enforcement accepted with has been sat- respect interest in nonexempt property on property. Upon lien, of valid liens as perfecting its exempt property. States, well Cf. Louis- as as result of 6321 has a ville Stack Land Joint Bank personam collect both in [Stock] and in (1935) Radford, 295 rem, U.S. and can enforce [55 either. order to 1593], S.Ct. L.Ed. interpret consistently (c)(3) liability permits the word 6325 must be
Subsection collection read to personam from mean both in exempt taxes as- remin liabili- Only exempted levy ty. assets sets. under Section 6334 of Internal Revе- personam The in liability may be dis- nue 6334 of Title Code Internal [§ charged bankruptcy, as case in applicable or under state Code] proceeding, this but stated above the tax or tax applied local law cannot be lien Thus, remains in force. the in rem satisfy applies these claims. This rule liability enforceable, remains and is there- claims the debtor *4 fore not lеgally unenforceable. Since the regardless of whether the claims or do liability tax legally is not unenforceable the priority they do not receive and whether Secretary was not to release the dischargeable nondischargeable. or 6325(a)(1). tax liens to §
Thus, if even a tax is vis-a- assets, acquired vis the debtors after it CONCLUSION may collectible ex- nevertheless be liability legally The debtors’ tax is not empt the property by held estate.... meaning unenforceable within the of S.Rep. Cong., 95th 2d No. Sess. 6325; therefore, the is Secretary not re- (1978), Cong. U.S.Code & Admin.News quired to relеase the tax liens 1978, pp. property. judgment on debtors’ The of the argue The debtors that irrespective bankruptcy court is reversed. Code, of Bankruptcy the the liens be must 6325(a)(1) the relеased of MOOREMAN, Bankruptcy Judge, Internal con Revenue Code. debtors dissenting. liability the tend that word as used agree majority’s I with the discussion 6325(a)(1) personal liability; means there regard 6325(a)(l)’s with to 26 U.S.C. sectiоn fore, personal liability if the meaning language “legally of unen- any legally tax liens become unenforceable. However, I am forceable.” unable con- reading We find the of debtors’ although cur in Panel’s conclusion that Congress clearly strained. co intended to liability personal becomes unenforcea- Bankruptcy ordinate 522 of the Code discharge, rеason ble of the seq. et Internal of the underlying the IRS need not release the generally Code. it is correct While arising liability. such lien out of liability word in the Reve used Internal personal liability, nue Code means 6325(a)(1) language clear of section conjunction must be read with § provides for the tax lien the release of which creates the tax lien. Section “the liability when ... has bеcome provides: case, unenforceable.” In the instant it is person If pay any liable undisputed that the debtors’ liabil- neglects after pay or refuses to the same ity for the debt has become unen- demand, shall lien in the amount ... be a hold, however, To that the forceable. upon prop- favor of the United all States may petition tax liens still enforced rights erty prоperty, whether real my view, is in debtors’ belonging person. or to such personal, contrary plain statutory language to the recognized section notion (1982 Supp. U.S.C. § allowing the debtor a frеsh start. gives Section 6321 Accordingly, respectfully be a I dissent and enforce what would otherwise grant- liability against taxpayer’s affirm the court’s would in favor of the summary judgment ing of
debtors. SELLNER, Regina Debtor. Marie
In re SELLNER, Plaintiff, Regina Marie Patrick, Atty., Asst. U.S. Richard G. and United States Charles SELLNER Phoenix, Ariz., for U.S. America, Defendants. Scottsdale, Ariz., Penterman, Lester L. Bankruptcy No. B-87-7881-PHX-GBN. plaintiff. Adv. No. 88-253-GBN. Phoenix, Rau, Ariz., M. Trustee. Albert Court, Bankruptcy United States D. Arizona. ORDER *5 19, 1989. Jan. NIELSEN, Jr., GEORGE B.
Bankruptcy Judge.
I undisputed arises on facts.
This mаtter (“debtor”) Regina Marie Sellner and her Sellner, spouse, former Charles owned real Glendale, Arizona, in property located tenancy survivorship. joint separated and a divоrce suit The Sellners Maricopa County Superior was filed Court. 1987, 10, judgment August
On which, alia, inter decree of dissolution debtor, realty entered. awarded the August Although debtor asserts the di- recorded, shе fails to vorce decree was date, argue she specify the nor does prior September recordation occurred 1987,the date the Internal Revenue Service (“Serviсe”) recorded a lien Charles separate liability. for his Dock- Sellner et Affidavit at 1-2. Debtor had been filing separate tax returns since 1984. apparent compliance with the divorce decree, quitclaim Sellner executed a deed of his interest to debtor 6, 1987, which was recorded on October Docket at Attach- October filed a declaration of ment A. Debtor